The Court Affirms Our Social Contract - The Atlantic - 0 views
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the federal courts are the guardians of our Constitution. That is certainly true, but it not the whole story. In fact, the most important function of the federal courts is to legitimate state building by the political branches.
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What is "state building?" Throughout our country's history, government has taken on many new functions. The early 19th century American state actually didn't do very much more than national defense and customs collection. The executive branch was tiny. Over the years, the federal government took on more and more obligations, offering new protections and new services for its citizens. After the Civil War, Congress passed a series of civil rights laws, it created the Interstate Commerce Commission to regulate railroads, it passed an income tax, and early in the twentieth century it created a central bank. State building really took off after the New Deal, which established the modern administrative and regulatory state and added a host of labor and consumer protection regulations, investments in infrastructure, and Social Security. The National Security State was born after World War II, and the 1960s brought new civil rights laws and new social welfare programs through the Great Society. At the turn of the 21st century, the federal government expanded its national security infrastructure even further, implementing vast new surveillance programs and strategies for dealing with terrorism
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Whenever the federal government expands its capabilities, it changes the nature of the social compact. Sometimes the changes are small, but sometimes, as in the New Deal or the civil rights era, the changes are big. And when the changes are big, courts are called on to legitimate the changes and ensure that they are consistent with our ancient Constitution.
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The words "legitmate" and "ratify," however, are ambiguous terms. Courts do not simply rubber stamp what the political branches do. Rather, they set new ground rules. The government may do this as long as it doesn't do that. Legitimation is Janus-faced: it establishes what government can do by establishing what the government cannot do.
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The real constitutional struggle begins in 1968, when Richard Nixon appointed four new conservative justices to the Court in his first term. These new justices accepted and ratified the changes of the 1960s, but also limited them in important ways. They made clear that the welfare state was constitutionally permissible but not constitutionally required, held that education was not a fundamental right, limited the use of busing to achieve racial integration, and halted the Warren Court's revolution in criminal procedure. The changes in social contract were ratified, but on more conservative terms.
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Roberts held that the individual mandate could not be justified by Congress's power to regulate interstate commerce. If it was constitutional, it was only as a tax, which gave people a choice to purchase health insurance or pay a small penalty. As I have argued for many years, this is, in fact, the correct interpretation of what the mandate does. Once this point is accepted, the argument for the mandate's constitutionality is straightforward, and Roberts quickly showed why this was true.
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Roberts' reasoning captures the dual nature of judicial legitimation. He has said to Congress: "You may compel people to enter into commercial transactions like the insurance mandate, but you may not do so as a direct order under the commerce power. Instead, you must do it through the taxing power, always giving people the choice to pay a tax instead. And as long as you structure the mandate as a tax, the people's rights are protected because they always have the right to throw their elected representatives out of office if they don't like the tax." Roberts' opinion thus harks back to a basic source of legitimacy enshrined in the American Revolution: "No taxation without representation."
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the Medicaid extension. He argued that Congress may create new social programs that expand protection for the poor. But Congress may not tell states that they must accept the new programs or else lose all federal contributions to existing social programs of long standing. The federal government may, if it wants, totally fund the Medicaid extension out of its own pocket without any help from the states. It may abolish the old version of Medicaid and create a new version in its place identical to the expanded version. What it may not do, Roberts argued, is to leverage States' dependence on federal money in established social welfare programs to compel States to participate in new social welfare programs.